Section 21 1b Served before tenacy starts?? Please advise

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    Section 21 1b Served before tenacy starts?? Please advise

    My partner and myself viewed a property 1 month ago which we decided to take through an agent. Because we could not move in until the end of the following month the agent and landlord required a deposit to hold the property which we paid to the agents. When we viewed the property with the landlord they said that they were looking for long term tenants, and this is one of the reasons we wanted to take the property.

    Today the lease agreement came through (6 Mths Assured Shorthold Tenancy), but was also joined with section 21 (1) (b) notice requiring possession at the end of the 6 months lease. We have contacted the agents who have said that it is common to do this with all lets now- I have been renting for the last 8 years and moved a number of times and never come across this before and secondly she said that we didn't have to sign it if we opposed it. She said that the Landlord was probably not even aware that the notice had been served.

    From your experience

    1) Is it normal to serve this document before a tenancy even begins?
    2) Does this mean that potentially the landlord has ideas to want the property back after the 6 months period but is not being honest with us?
    3) With this being served now does this affect how the tenancy would proceed onto a periodic tenancy?

    We are both professionals with very good references/ credit history.

    Any help and advice would be greatly apprecied!!

    #2
    This is a very common practice(search for "sword of damocles" on this forum to find out more about it). Basically, it is just so, if you are a problem tenant, you can be evicted at the end of the fixed term ASAP. If you are a good tenant, I wouldn't worry about it too much.

    However, I do not think it can be served before you have even moved in...think that may render it invalid. I await correction though.
    Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

    Comment


      #3
      Section 21

      Since there's nothing in the 1988 Housing Act to say otherwise one school of thought among landlords/agents is the that the noticed should be served at the start of the tenancy (just after it started) while relations are good. Servicing a notice on a tenant once relations become strained or break down completely is frought with difficulties - tenants in these circumstance often refuse all contact and will not accept recorded deliveries.
      This practice has no bearing on your security of tenure and does not imply the landlord will require possesion after 6 months.
      As Mr Shed makes clear, it's a precaution and the notice would be invalid if served BEFORE you occuply the premises - if you have occupied the premises before you signed the agreement, your tenancy started the moment you took up occupation - more specifically when you were handed the keys.

      Comment


        #4
        Also, a Section 21 notice does not have to be signed to be valid.

        Comment


          #5
          As everyone else says, it is standard practice these days for some landlords/agents. You see in the commercial world, leases are granted for a certain period of time and then must be renewed BEFORE the old one expires if the organisation concerned is to remain in occupation of the property (shop, office building or whatever). This is not the case with domestic lets, when the lease (normally granted for the minimum allowable period of six months) expires, it continues in law automatically on what is called a statutory periodic basis. This saves some of us landlords from having to renew leases and, in my case, saves me the administration time of having to do so - my tenants are perfectly happy with the two months security of tenure that the statutory periodic tenancy provides.
          However, agents are in business to make a living so they see an opportunity to charge a fee to renew domestic property leases when they expire. To do this, they issue the "section 21" notice when the lease commences, so that they can terminate the lease when it expires - same as a commercial lease. Thus you start with six months security of tenure which reduces to zero. Now what will probably happen provided you pay your rent on time and look after the property is that you will be invited to renew your lease a month or so before it is due to expire. Invariably there will be a charge associated with this - and your landlord will probably be charged as well!
          Now, what some naeve landlords who don't read Landlordzone don't know is that this is an excuse for agents to make more money and such lease renewals are totally unnecessary. This is provided that once the fixed 6 month term of the AST expires, both parties are happy with two months security of tenure. This is provided in law so long as a section 21 notice is not served at the beginning of the tenancy - which I don't. The service of such a notice means that, unless the lease is renewed, the landlord can apply to the courts for eviction at any time after the end of the fixed term of the original AST - hence Mr. Shed's referral to "the sword of Damocles" which I think I started!

          P.P.
          Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

          Comment


            #6
            Originally posted by Sunnyday View Post
            1) Is it normal to serve this document before a tenancy even begins?
            It seems that now the Sword of Damocles loophole is becoming more known more agents/landlords are serving a S21 early on in the tenancy. Serving it before the start just means the agent doesn't know what they're doing as it's probably invalid.

            Originally posted by Sunnyday View Post
            2) Does this mean that potentially the landlord has ideas to want the property back after the 6 months period but is not being honest with us?
            It's hard to say but I'd guess it doesn't reflect on the landlords intentions. You could always write and ask him.

            Originally posted by Sunnyday View Post
            3) With this being served now does this affect how the tenancy would proceed onto a periodic tenancy?
            If you remain in occupation after the initial fixed term expires, with no new agreement in place and with a valid expired S21 then a) The landlord can proceed to court for possession at any time, b) You can up and leave at any time. In both cases you would have to pay the rent for the days you are in occupation and in case a) you would also have to pay the landlord's court fees. If there was no S21 then the landlord would have to give you two months notice before he can proceed to court for possession and you would have to give one months notice to leave.

            If you sign up to a second six months fixed term then you can forget about the original S21 but chances are the agent will issue you with a new one putting you back it to square one anyway. It will be harder for you to negotiate good terms for any extension as if it isn't agreed you will have to move in a hurry. This leaves you open to paying rent increases and administration fees. Bear in mind that the landlord may say he intends to keep you on but circumstances can easily change with rising interest rates making his mortgage more expensive you may find he decides to sell and again you may end up having to move in a hurry as you will not get two months notice to start organising your move.

            Speaking as a tenant I would not like the "Sword of Damocles" hanging over me and I'd be interested to hear the name of the agency imposing this to I can put them on my avoid list!
            ~~~~~

            Comment


              #7
              Thank you

              Thank you for taking the time to reply to my posting. Your replies have clarified the issues and helped me understand how I stand legally. Thank You

              Comment


                #8
                Originally posted by Ruth Less View Post
                It ... It will be harder for you to negotiate good terms for any extension as if it isn't agreed you will have to move in a hurry. ...
                Not strictly true, though I understand your point. Ruth Less, you forget how darn SLOW the court system is, so even if the landlord moves to evict a tenant who has a valid S21 in place, it can take an age for the case to be heard and only in exceptional circumstances will a judge order a tenant to leave in less than 14 days anyhow.

                But it's definitely a two-edged sword to have a S21 around after a tenancy has changed from AST to periodic as the landlord could potentially lose a lot of money by the tenant just leaving without mentioning it to him/her without being liable for the rent either. A point to ponder for landlords who INTEND letting an AST change to periodic.

                I suspect this is a tool that unscrupulous letting agents use to scare landlords into creating new ASTs, so that the agents can get another pile of money for doing little or no work (but then letting agents aren't my favourite people so do take that comment as being said with more than hint of rancour! )

                Comment


                  #9
                  Originally posted by Surrey View Post
                  Not strictly true, though I understand your point. Ruth Less, you forget how darn SLOW the court system is, so even if the landlord moves to evict a tenant who has a valid S21 in place, it can take an age for the case to be heard and only in exceptional circumstances will a judge order a tenant to leave in less than 14 days anyhow.
                  For a bad tenant who doesn't mind taking things as far as court that may well be the case but I would not want to be put in that position as a) I'd have to pay the landlord's court fees and more importantly b) I would not want to jeopardise my good references as I will be wanting to rent somewhere else. I'd guess it is also a stressful situation for a tenant to be in. It would rankle that I'd be getting the "blame" in terms of fees and bad references when in reality I hadn't done anything wrong!

                  Originally posted by Surrey View Post
                  I suspect this is a tool that unscrupulous letting agents use to scare landlords into creating new ASTs, so that the agents can get another pile of money for doing little or no work (but then letting agents aren't my favourite people so do take that comment as being said with more than hint of rancour!
                  Maybe you are right here. But these unscrupulous letting agents charge the tenant for renewals too, so any tenant needs to bear the fees in mind when taking on a property. Why should the tenant pay for the landlords bad choice of agent?

                  I am seeing a similar problem at the moment. The worst agent in town (unfair contract, largest fees) has loads of nice empty properties available to rent. But is that a coincidence? I think not, they attract the landlords by heaping all the fees onto the tenants and then can't attract tenants. So the landlord is left with an empty property. Meanwhile properties fly off the good agents books faster than you can book a viewing!
                  ~~~~~

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